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Liano v. City of Bridgeport

CASE NO. 4934 CRB-4-05-4



APRIL 13, 2006









The claimant was represented by Andrew J. Morrissey, Esq., Law Offices of David J. Morrissey, L.L.C., 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondent-employer was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the April 6, 20051 Finding & Dismissal of the Commissioner acting for the Fourth District was heard October 14, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Scott A. Barton.


JOHN A MASTROPIETRO, CHAIRMAN. The claimant, Carl J. Liano, appeals from the decision of the Commissioner acting for the Fourth District denying his claim for temporary total disability benefits. We find no error, and uphold the decision of the trial commissioner.

Mr. Liano is a former Bridgeport city policeman who retired for medical reasons over two decades ago. He has had a number of formal hearings and appeals to the CRB over the intervening years. The instant appeal asserts claimant’s position that between August 26, 2003 and October 25, 2004 he was totally disabled and since this disability relates to a compensable work-related condition, he is entitled to temporary total disability benefits under § 31-307 C.G.S.

The trial commissioner held a formal hearing on July 15, 2004 and October 15, 2004. The essential dispute concerned the medical testimony submitted as to the level of disability. The claimant’s treating physicians, Dr. Myl Rama and Dr. Zosimo Adefuin, submitted evidence that his cardiac condition was such that it rendered him totally disabled. Findings, ¶¶ 18-24. The respondent’s physician, Dr. Martin J. Krauthamer concluded after examination of the claimant that he had a sedentary light work capacity with a 20 lb lifting capacity. Findings, ¶ 25. The claimant testified at the hearing that he was experiencing “six to eight” angina related episodes per week, they were getting progressively worse and he did not believe he could perform a job. Findings, ¶¶ 27, 36 and July 15, 2004 Transcript, pp. 11, 22-23. He associated these episodes with stress, but he also testified to an essentially sedentary household routine. July 15, 2004 Transcript, pp. 12-18.

The trial commissioner dismissed the claim for temporary total disability on April 6, 2005. She made two central findings 1) she found the respondent’s medical testimony more credible than the claimant’s and determined that the claimant had a work capacity during the period in question; Findings, ¶¶C and E, and 2) she found the claimant’s testimony as to his cardiac impairment not to be credible. Findings, ¶ A.2 A review of the appropriate legal standard for a § 31-307 claim finds that either finding standing alone provides sufficient grounds to uphold the Finding and Dismissal. The Appellate Court set the requisite legal standard in D’Amico v. Dept. of Correction, 73 Conn. App. 718, 724 (2002).

“The plaintiff is entitled to total disability benefits under General Statutes § 31-307 (a) only if he can prove that he has a ‘total incapacity to work.’ General Statutes § 31-307 (a). ‘The plaintiff [bears] the burden of proving an incapacity to work. . . .’ Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454, 774 A.2d 992 (2001). Our Supreme Court has defined total incapacity to work as “the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.’ (Emphasis added.) Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456, 78 A.2d 339 (1951).”

Consequently, the burden is on the claimant to prove he cannot work,

“When a claimant asserts that she is totally incapacitated, the burden of proving such a disability falls on her. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996). The trial commissioner acts as the finder of facts and the arbiter of evidentiary credibility, including all medical reports and testimony. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998). If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal. Id.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000).

The trial commissioner herein found credible the testimony of Dr. Krauthamer who opined that the claimant did possess a work capacity. Dr. Krauthamer examined the claimant on December 29, 2003. Dr. Krauthamer’s conclusions were the “nuclear study shows no defects and no abnormalities,” “he was capable of work”, “he could carry up to 20 lbs” and “there is no cardiac reason that he could not engage in sedentary work activities, such as filing or clerical work.” Respondent’s Exhibit 6.

Dr. Krauthamer’s testimony regarding the claimant’s work capacity met the requisite standard of an opinion rendered to a reasonable medical probability. Consequently, it was competent medical evidence on an essential element of the claimant’s case. The trial commissioner evidently found his judgment as to the plaintiff’s work capacity more credible than the opinions of the claimant’s treating physicians. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses.” D’Amico, supra, 725. Having adopted Dr. Krauthamer’s opinion regarding medical issues, the trial commissioner could dismiss the claim based on that evidence alone.

The trial commissioner also made an evaluation as to the claimant’s credibility. This provides an independent basis to evaluate and ultimately uphold the trial commissioner’s decision. As cited before, it is the claimant’s burden to prove total incapacity to work. See Cummings, supra. Certainly the trial commissioner can evaluate the responses of the claimant at the formal hearing to reach a determination as to whether the claim is meritorious and the claimant’s medical condition objectively so debilitating as to warrant a finding of total disability.

In Finding, ¶ A, the trial commissioner found that the claimant’s testimony regarding his angina and shortness of breath were “lacking in credibility and inconsistent with his level of medical impairment.” The hearing transcript does present that the claimant offered that his angina episodes were provoked by stress, July 15, 2004 Transcript, pp. 12-13, but later in the hearing after describing a rather serene domestic life he claimed he was suffering angina episodes at rest. Id., pp. 16-17. Having found Dr. Krauthamer’s medical testimony credible regarding the claimant’s cardiac status the trial commissioner was not illogical in placing little weight in the claimant’s narrative.

More importantly, the trial commissioner is the sole person empowered to evaluate a witness’s credibility.

“Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” (Internal quotation marks omitted.). Briggs v. McWeeny, 260 Conn. 296, 327; Mottolese v. Burton, 267 Conn. 1, 40 (2003).”

The claimant advances two subordinate reasons for appeal. First, he alleges the trial commissioner considered evidence not relevant to the determination and failed to consider evidence that was relevant to the determination. He also claims error from the denials of those parts of the Motion to Correct that were denied.

In regards to the issues pertaining to the Motion to Correct and the trial commissioner’s alleged “failure” to find certain evidence relevant, these arguments essentially seek to substitute the claimant’s opinions for that of the trial commissioner. “In his motion to correct, the plaintiff merely seeks to have the commissioner conform his findings to the plaintiff’s view of the facts. It is the commissioner, however, who must determine which portions of a witness’ statement or what medical opinions are credible and, therefore, helped form the basis of the commissioner’s conclusion. . . . The plaintiff cannot expect the commissioner to substitute the plaintiff’s conclusions for his own.” D’Amico, supra, 728.

The claimant also states that the findings indicate a reliance on a number of matters which the claimant believes were irrelevant to the determination of total incapacity under § 31-307 C.G.S. but that the trial commissioner purportedly “relied” on in reaching her decision. In his brief the claimant points to issues pertaining to smoking, Findings, ¶35; the use of Viagra, Findings, ¶ 37; obesity, Findings, ¶ 14 and failure to seek gainful employment or retraining. Findings, ¶¶ 30-33.3 The claimant believes “reliance” on such “impermissible factors” requires the reversal of the Finding and Dismissal. Our precedent does not require reversal, however.

As previously noted, Dr. Krauthamer’s medical opinion of December 29, 2003 (which does not address these issues) provide an independent basis to ascertain the claimant had a work capacity and therefore, was not entitled to § 31-307 benefits. Even if we were to conclude the findings objected to by the claimant were irrelevant,4 we have previously held the admission of irrelevant evidence was harmless error.

“While irrelevant testimony before a jury may have a tendency to distract attention from the real issues . . . the same is not true in a trial to a court. In a trial to a court, as opposed to a trial to a jury, the admission and use of irrelevant evidence is generally harmless simply because it is not relevant to the basic issues.” Peters v. Corporate Air, Inc., 1679 CRB-5-93-3 (May 19, 1995) citing Flowers v. Benny’s of Connecticut, 12 Conn. Workers’ Comp. Rev. Op. 162, 164 1527 CRB-2-92-10 (April 26, 1994).

Similar to Peters, supra, “the commissioner’s decision did not rest substantially upon the evidence to which the claimant objects.” The findings regarding the claimant’s medical condition and credibility are amply supported by evidence which the claimant may dispute but must concede was relevant.

For that reason, the trial commissioner’s Finding and Dismissal as corrected on June 6, 2005 is herein upheld.

Commissioners Nancy E. Salerno and Scott A. Barton concur.

1 We note that an extension of time was filed and granted during the pendency of this appeal. BACK TO TEXT

2 The claimant filed a Motion to Correct on April 20, 2005. It was granted in part on June 6, 2005 but the granted corrections did not impact the findings. BACK TO TEXT

3 Despite claimant’s arguments, we have previously held at least one of these issues serves as a relevant consideration in determination of whether to grant a § 31-307 award. We held that failure to engage in vocational rehabilitation or seek work was a relevant factor in deciding not to grant a total disability award in Rapuano v. Standard Builders, Inc., 1975 CRB-5-94-2 (January 13, 1995). BACK TO TEXT

4 It is possible the trial commissioner found the claimant’s prescription drug usage relevant for its inconsistency with the claimant’s claimed total medical incapacity. Whether this information was relevant is of no moment. The record offers independent grounds for the trial commissioner questioning the claimant’s credibility. BACK TO TEXT


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